Untitled Texas Attorney General Opinion ( 1971 )

Mr. Enrique H. Pane Opinion No. M-809
County Attorney
El Paso County ,Re: 1) Authority of the El Paso
Room 201 City-County Bldg. Council of Governments to
El Paso, Texas 79901 enter into contract with
Dona Ana County, New Mexico,
for development of a recrea-
tional area. 2) Authority of
City of El Paso to enter into
a contract with El Paso Council
of Governments for development
of recreational area partly
in city limits and partly in
Dear Mr. Pena: New Mexico.
In your recent letter you give background information
concerning the organization of the El Paso Council of Governments
and request the opinion of this office on the following questions:
1. Whether the El Paso Council of Gwernments can
enter into a contract with Dona Ana County, acting through its
Board of Commissioners, for the development of a recreational
area where the land lies both in the State of New Mexico and
the State of Texas.
2. Whether the City of El Paso is authorized to enter
into a contract with the El Paso Council of Governments for the
development, operation and maintenance of a recreational area,
where such recreational area lies partly within the city limits
of the City >f El Paso, part of it is in the County of El Paso,
and a portion of the area is within the County of Dona Ana,
State of New Mexico.
We are of the opinion that if the El Paso Council of
Governments enters into a contract with the City of El Paso,
whereunder the city is to develop, operate, and maintain as a
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Mr. Enrigue H. Pena. page 2 (M-889)
recreational area the land described in your inquiry, then the
contract may also include as a party Dona Ana County, New Mexico.
That county's obligation under that contract is primarily to con-
tribute $25,000 to the development of the area and to maintain
police patrol over the land situated in New Mexico.
A contract of this kind is within the purview of Article
lOllm, Vernon's Civil Statutes*, under which the El Paso Council
of Gwernments derives its powers. The Legislature clearly drafted
Article 1Ollm with a view to giving the Council broad powers to
accomplish the purposes of the Act; it should be given a liberal
construction to carry out.the purposes and objectives. Attorney
General's Opinion No. M-689 (1970). Section lD of this Article
reads, in part, as follows:
,I . . . It is the intention of this Act to
permit the greatest possible flexibility among
the various participating governmental units to
organize and establish Commissions most suitable
to the nature of the area problems as they see
them."
Further evidence that the Legislature did not intend
to restrict by this Act the powers of the governmental units act-
ing through the Council is found in the following language from
Section 3 of Article 101lm:
” . . . But nothing in this Act shall be
construed to limit the powers of the participating
gwernmental units as provided by existing law . . ."
Section 7 of this Article provides for interstate coop-
eration as follows:
*References to and quotations from this Art. 1Ollm include
the amendments to it made by S.B. 242, Acts 1971, 62nd Leg., R.S.,
effective May 28, 1971.
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Mr. Enrique H. Pena, page 3 (M-889)
"Section 7. Interstate Commissions. With
advance approval of the Governor, a Commission
including a region or area which is contiguous to
an area lying in another state may join with any
similar commission or planning agency in such
areas to form an interstate Regional Planning
Commission or may permit the Commission in the
contiguous area to participate in the planning
functions of a Commission formed pursuant to
this Act, and the funds prwided under the pro-
visions of Section 6 of this Act may be commingled
with the funds prwided by the state governments
having jurisdiction over the contiguous areas."
Although the project here considered would not be developed by
an interstate Regional Planning Commission as authorized by
Section 7, we note that the Legislature evidenced by this Section
its recognition of the need for and its approval of interstate
cooperation.
Section 4(a) expressly authorizes the Commission to
make plans for the development of the area, including parks and
recreation sites.
Section 4(d) 'provides authority for the Council to
acquire a leasehold interest in the subject land in the follow-
ing language:
"(d) A Cosunissionmay purchase, lease or
otherwise acquire, hold, sell or otherwise dis-
pose of real and personal property. . . ."
Authority for the Commission to assist in the develop-
ment of the recreational area is found in the following language
from Section 4(b)%
II. . . The commission may assist the par-
ticipating governmental units individually or
collectively in carrying out plans or recommen-
dations developed by the Commission. . . ."
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Mr. Enrique Ii.Pena, page 4 (M-889)
Section 4(c) of Article 1Ollm provides that the Com-
mission may contract with one or more of its member governments
to perform certain services. We think that the three party con-
tract here discussed would be authorized, even though Dona Ana
County is not a member gwernment, because the contract to perform
the service of developing and maintaining the recreational facility
is undertaken by the city of El Paso, a member government. We
see no reason why bona Ana County could not join as a supplier
of money; that county already has a duty under New Mexico law to
maintain order in all that major portion of the park area which
lies in New Mexico.
Section 6(a) of Article 1Ollm reads as follows:
"Funds. (a) A Regional Planning Commission is
authorized to apply for, contract for, receive and
expend for its purposes any funds or grants from
any participating gwernmental unit or from the
State of Texas, federal government, or any other
source."
It also should be observed that Articles 4413d-1 and
441311-2,Vernon's Civil Statutes, which.are to be considered in
pari materia with Article lOllm, declare the public policy of
the state is n . . . to render technical assistance and to assume
responsibility for coordinating relationships between local gov-
ernmental units and federal agencies. . . ." in any federal
grant program. It is our opinion that the powers of the City of
El Paso and the Council of Governments, both of which are gwern-
mental units and political subdivisions of the state, extend to
Dona Ana County and the Federal agencies with respect to the pro-
posed contract.
In reply to your second question, our answer is in the
affirmative, if:
(1) The city holds the land as one of the lessees under
the Federal government which owns all of the land: and
(2) The city administers and operates the recreational
facilities, either singly or jointly in cooperation with one or
more other gwernmental units.
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Mr. Enrique Ii. Pena, page 5 (M-889)
The City of El Paso is chartered under Chapter 5,
Special Laws of Texas, Acts of the 30th Legislature, Regular
Session, 1907, page 24. Section 1 of that Act prwides that
the city
II . . . may take, acquire, hold and purchase,
lease, grant, sell or convey such property, real,
personal or mixed, as the needs or purposes of the
corporation may require, either within or without
the limits of the city, including real estate with-
out the limits of the city of El Paso, for . . .
for public parks . . ." (Emphasis supplied.)
Section 2 of the Act of 1907 includes the following
language:
II . . . and it shall have and exercise all
pwers of municipal government not prohibited to
it by this charter or by some general law of the
State of Texas, or by the provisions of the Con-
stitution of the State of Texas."
We are of the opinion that Section 1 of the Act of 1907
authorizes the city to acquire a lease on the land in question
and to develop it as a recreational facility. The statute ex-
pressly authorizes the holding of real property without the limits
of the city, and does not restrict such holding to land within the
county or the state. The broad powers granted under Section 2 of
the same Act would also authorize such holding.
We are of the opinion that the broad powers granted to
the city under Section 2 will permit the city to contract with
the El Paso Council of Governments for the development, operation
and maintenance of the recreational area.
In addition to the Act of 1907 chartering the City of
El Paso there are Texas statutes which authorize a city to de-
velop and maintain recreational facilities. We direct your at-
tention to Article 1015c-1, Vernon's Civil Statutes. An examina-
tion of that statute discloses the following features:
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Mr. Enrigue II. Pena, page 6 (M-889)
1. A city is expressly authorized to establish, operate
and support public recreational facilities. Sec. 1:
2. The statute does not restrict the location of the
park to the city, county, or state.
3. A city W . . . may establish, provide, acquire, main-
tain, construct, equip, operate and supervise recreational facili-
ties and programs either singly or jointly in cooperation with one
(1) or more other gwernmental units." Sec. 3.
4. The statute expressly permits a city to establish,
operate or support public recreational facilities and programs
on land held as lessee. Sec. 7.
5. The statute expressly permits the city to accept
any gift of money or other personal property for use in the
establishment, operation, or support of public recreation facili-
ties and programs. Sec. 7.
SUMMARY
Dona Ana County of New Mexico may be a third
party to the proposed contract between the El Paso
Council of Governments and the City of El Paso,
under which the City of El Paso is to develop,
operate, and maintain as a recreational area land
which lies partly in the City of El Paso and partly
in Dona Ana County, New Mexico. Dona Ana County's
obligation under that contract is primarily to
contribute $25,000 to the development of the area
and to maintain police patrol over the land situated
in New Mexico.
The City of El Paso is authorized to enter
into the proposed contract with the El Paso Council
of Governments for the development, operation and
maintenance of a recreational area, where the land
constituting such recreational area lies partly
within the city limits of the City, partly within
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i ., .
Mr. Enrigue H. Pena, page 7 (M-889)
the County of El Paso, and a part of the land is
within the County of bona Ana. State of New Mexico.
The city will hold the land as one of the lessees
and will administer and operate the recreational
area, either singly or in cooperation with one
or more other governmental units. Art. lOllm,
1015c-1, 4413d-1 and 441311-2,V.C.S., and Acts
30th Leg., 1907, R.S., Spec. Laws, Ch. 5, P. 24
(Charter of the City of El Page).
V,/ry itruly y rs,
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@$ WF C. MARTIN
Atto ey General of Texas
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Melvin Corley
Sam Jones
Scott Garrison
Austin C. Bray, Jr.
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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